Judge Hears New York Brownfield Cleanup Case

A state Supreme Court judge heard arguments today in a lawsuit by environmental groups seeking to fix New York State's troubled Brownfield Cleanup Program.

The groups, represented by the public interest law firm Earthjustice, are challenging the program's weak cleanup standards, issued in the final days of the Pataki administration.

"Before we give out tax credits and liability exemptions to developers, before we allow homes and daycare centers and nursing homes to be built on these sites, we must make sure they are cleaned up to a level that protects human health," said Earthjustice attorney Keri Powell. "That's what we're asking for in this lawsuit."

Earthjustice is representing Sierra Club, New York Public Interest Research Group, Environmental Advocates of New York and Citizens' Environmental Coalition in the case.

Once hailed as landmark environmental legislation, the Brownfield Cleanup Program was intended to encourage the cleanup and redevelopment of the thousands of boarded-up gas stations, decaying factories and other abandoned sites across the state. But the DEC ignored the directive of the State Legislature and issued watered-down site cleanup standards that fail to protect public health and the environment.

"Under Governor Pataki's administration, New York established unsafe, second-rate soil cleanup standards that are not protective of children and drinking water," said Anne Rabe, board member of Citizens' Environmental Coalition. "Surprisingly, Governor Spitzer and the Departments of Environmental Conservation and Health have refused to address this outstanding flaw in the brownfield program. It is time for the state to fix this problem and stop subsidizing dirty cleanups."

Among other controversial changes, the DEC adopted weaker cleanup standards for properties in polluted neighborhoods, saying that sites only had to meet "background" levels of pollution. Under this regulation, such sites would be left only as clean as the surrounding area instead of being held to stricter standards designed to protect human health.

In response to the lawsuit, the Spitzer administration conceded in November that the program's use of polluted "background" levels to limit site cleanups is illegal. But other serious flaws remain:

In the 2003 law, the State Legislature required that sites be cleaned to a level that protects indoor air, surface water, and fish and other aquatic resources. The DEC refused to follow this mandate.

"All we are asking is that New York State's brownfields regulations be protective of public health and the environment, and reflect what the law requires," said Tim Sweeney, Regulatory Watch Program Director, Environmental Advocates of New York. "The Department of Environmental Conservation has forced us to take them to court over concerns that are entirely reasonable and legitimate."

State lawmakers also asked the DEC to study the results of past cleanups to determine whether tougher cleanup standards could be achieved, especially for contaminants where there is insufficient data on health risk. Again, the DEC refused.

"These standards are outdated and don't reflect current research," said Joseph A. Gardella Jr., Toxics Chair of the Sierra Club Atlantic Chapter's Conservation Committee and professor of Chemistry at SUNY Buffalo. "It's time to demand that the latest and best science and engineering be implemented to protect public health."

Finally, the DEC arbitrarily excluded all properties polluted by an off-site source. This exclusion could leave countless sites ineligible, many of them in low-income communities with a legacy of toxic contamination where pollution can be coming from several sources.

"The brownfield cleanup issue is the first real test of the Spitzer Administration's commitment to protecting public health, and so far, we've been disappointed in their response," said Laura Haight, senior environmental associate with the New York Public Interest Research Group (NYPIRG). "Governor Spitzer and Commissioner Grannis should be fixing these regulations, not defending them."

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